Service Law; T. Rajendran Vs. Malabar Devaswom Board [Kerala High Court, 25-07-2016]

Hindu Religious and Charitable Endowments Act, 1951 (Madras) – S. 18 – Devaswom Commissioner – Trustee Board – petitioner was appointed as Vazhipadu clerk in the Temple – appointed to a post that was not sanctioned – not a post that was mentioned in the approved schedule of establishment pertaining to the Temple – terminate the services – appeal preferred – Trustee board allowed the appeal – Commissioner did not choose to exercise his powers of revision to revise the appellate order of the Trustee Board – Held, the Devawom Commissioner cannot, at this stage, ignore the effect of the appellate order, whereby, the termination of the services of the petitioner was found to be illegal, and the petitioner held entitled to continue in the services of the Temple. The appellate order of the Trustee Board would have to be given its legal effect in the absence of any challenge by the Devaswom Commissioner, with regard to its alleged illegality or lack of jurisdiction.

# Malabar Devaswom


IN THE HIGH COURT OF KERALA AT ERNAKULAM

A.K. JAYASANKARAN NAMBIAR, J.

W.P.(C).NO.19347 OF 2014 (P)

Dated this the 25 th day of July, 2016

PETITIONER(S)

T. RAJENDRAN VAZHIPAD CLERK, SREE VAIRANKODU BHAGAVATHY DEVASWOM, THIRUNAVAYA, MALAPPURAM DISTRICT.

BY ADVS.SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA

RESPONDENT(S)

1. MALABAR DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, CIVIL STATION, KOZHIKODE – 673 001.

2. THE COMMISSIONER MALABAR DEVASWOM BOARD, KOZHIKODE – 673 001.

3. THE TRUSTEE BOARD SREE VAIRAMKODE BHAGAVATHI DEVASWOM, REPRESENTED BY ITS CHAIRMAN, THIRUNAVAYA, MALAPPURAM DISTRICT – 676 505.

4. THE EXECUTIVE OFFICER SREE VAIRAMKODE BHAGAVATHI DEVASWOM, THIRUNAVAYA, MALAPPURAM DISTRICT – 676 505.

R4 BY ADV. SRI.MOHAN C.MENON R1,R2 BY ADV. SRI.PARTHASARATHY.B, SC, MALABAR DEVASWOM BOARD R1-R2 BY ADV. SRI.MAHESH V.RAMAKRISHNAN, SC, MALABAR DEVASWOM BOARD

J U D G M E N T

The petitioner was appointed as vazhipadu clerk in the Temple, of which the 4 th respondent was the Executive Officer, on 28.8.2008. The appointment of the petitioner was apparently pursuant to the decisions of the Trustee Board dated 27.3.2007, and 12.08.2008 [Ext.P2]. It is stated that, pursuant to the aforesaid decision, applications were invited from various candidates on 13.8.2008, and it was pursuant to the consideration of the candidature of various persons that, by Ext.P4 order dated 28.8.2008, the petitioner was appointed as a vazhipadu clerk in the Temple. Ext.P5 is the joining report, which indicates that the petitioner joined service with effect from 1.9.2008. The facts in the writ petition would indicate that, by Ext.P6 order dated 20.12.2008, the services of the petitioner were terminated by the 4 th respondent, who placed reliance on a communication dated 18.12.2008 of the Devaswom Commissioner, to terminate the services of the petitioner. Aggrieved by Ext.P6 order, the petitioner preferred an appeal as per clause 7 of Ext.P7 Scheme, before the Trustee Board. Ext.P8, is the appeal preferred by the petitioner before the Trustee Board and Ext.P9 is the stay petition preferred along with the appeal before the said Board. By Ext.P10 order dated 21.12.2008, the Trustee Board stayed the operation of Ext.P6 order that terminated the services of the petitioner. Although the 4 th respondent filed a revision petition before the Devaswom Commissioner, and in the said proceedings, there was initially a stay granted against the operation of Ext.P10 order, subsequent to the judgment in W.P.(C).No.362/2009, that was preferred by the petitioner, the 4 th respondent withdrew the revision petition preferred before the Devaswom Commissioner. The circumstances under which the revision petition was disposed are mentioned in Ext.P14 communication, of the 4 th respondent to the petitioner, wherein, it is also stated that, pursuant to the revision petition being withdrawn, the Devaswom Commissioner had also directed the Trustee Board to pass final orders in Ext.P8 appeal that was preferred by the petitioner against Ext.P6 order terminating his services. The said communication also indicates that Ext.P8 appeal was allowed by the Trustee Board, on 2.7.2010, and, hence, the petitioner could continue his services as a vazhipadu clerk in the Temple in question. Consequent to the appeal being allowed, the petitioner, by Ext.P16 application, requested for the grant of increments and leave surrender benefits. The said request, however, was turned down by the 4 th respondent by Ext.P17 communication dated 20.6.2014, on the ground that the Devaswom Commissioner had not approved the salary schedule in respect of the petitioner, and therefore, the question of grant of increments and leave surrender benefits could not be considered. In the writ petition, the petitioner impugns Ext.P17 communication, and seeks a direction to the Devaswom Commissioner to approve the schedule of establishment of Sree Vairamkode Bhagavathy Temple, Thirunavaya, by including the petitioner’s name and post in the said schedule of establishment.

2. A counter affidavit has been filed on behalf of respondents 1 and 2, wherein, it is stated that the petitioner was appointed pursuant to an illegal decision of the Trustee Board dated 28.8.2008. It is pointed out that, when the said fact came to the notice of the respondents, directions were given to terminate the services of the petitioner, since the Trustee Board did not have the power to make an appointment to a post which was not included in the schedule of establishment that was approved by the Devaswom Commissioner. It is, in particular, stated that the appointment of the petitioner as vazhipadu clerk in the Devaswom was against a post that was in fact not in existence, and therefore, the action of the 4 th respondent in having issued an appointment order, was prima facie illegal. In paragraph 6 of the counter affidavit, reference is made to Ext.R1(a) report that was drawn up in 2013, which indicates that, as against nine approved posts sanctioned in the Temple, there were 17 persons working, and the appointment of persons in excess of the approved posts was an illegality committed by the Trustee Board and the 4 th respondent. It is vehemently contended that inasmuch as the petitioner was appointed to a post that did not find mention in the approved schedule of establishment, the petitioner could not aspire for any consequential benefits flowing from such appointment. Reference is also made to the provisions of

# Section 18 of the Madras Hindu Religious and Charitable Endowments Act, 1951

to point out that the Devaswom Commissioner has a supervisory and regulatory control over the actions of the Officers subordinate to him under the above Act, and the orders passed by the said Officers cannot stand in the light of the fact that the post, to which the petitioner was appointed, was not mentioned in the approved schedule of establishment.

3. I have heard Sri.Mohanakannan, the learned counsel for the petitioner, Sri.Mahesh V. Ramakrishnan, learned Standing counsel for respondents 1 and 2 and also Sri.Mohan C. Menon, the learned Standing counsel for the 4 th respondent.

4. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that although it is the specific case of the 1 st and 2 nd respondents that the petitioner in the instant writ petition was appointed to a post that was not sanctioned, in that, it was not a post that was mentioned in the approved schedule of establishment pertaining to the Temple in question, as a matter of fact, Ext.P6 order, by which the services of the petitioner was terminated by the 4 th respondent, was carried in appeal before the Trustee Board, and the said Trustee Board had allowed the appeal by an order dated 2.7.2010. It will be evident from a perusal of Ext.P14 communication that, the order of the Trustee Board, allowing the appeal preferred by the petitioner, was pursuant to directions issued by the Devaswom Commissioner, and, hence, it cannot be said that the Devaswom Commissioner was not aware of the order dated 2.7.2010, by which, the Trustee board allowed the appeal preferred by the petitioner against Ext.P6 order that terminated his services. It is also not in dispute that despite the specific powers conferred on the Devaswom Commissioner, under Section 18 of the Madras Hindu Religious and Charitable Endowments Act, 1951, the Commissioner did not choose to exercise his powers of revision to revise the appellate order of the Trustee Board. Under the said circumstances, I am of the view that the Devawom Commissioner cannot, at this stage, ignore the effect of the appellate order, whereby, the termination of the services of the petitioner was found to be illegal, and the petitioner held entitled to continue in the services of the Temple. The appellate order of the Trustee Board would have to be given its legal effect in the absence of any challenge by the Devaswom Commissioner, with regard to its alleged illegality or lack of jurisdiction. This would be the case, since, the appellate remedy that was pursued by the petitioner was in accordance with Ext.P7 Scheme, and the validity of the appellate order can be traced to the provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951. I also find that it is now more than six years since the Trustee Board passed the order allowing the appeal, and inasmuch as the said appellate order was passed with the knowledge of the Commissioner, it would be futile for the Devaswom Commissioner to now contend that the powers under Section 18 can be exercised at this distance of time. Resultantly, I am of the view that Ext.P17 order cannot be legally sustained. I therefore quash Ext.P17 order, and direct the respondents to treat the petitioner as having been validly appointed as a vazhipadu clerk, in the Temple, under the administrative supervision of the 4 th respondent. The respondents shall also take steps to include the post occupied by the petitioner in the schedule of establishment of the Sree Vairamkode Bhagavathy Temple, Thirunavaya, for the purposes of regularising the said appointment. It is also made clear that the petitioner shall be paid the monetary benefits that flow from the declaration of legality of his appointment, within a period of two months from the date of receipt of a copy of this judgment.

The writ petition is allowed with the above directions.

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